Family Law Newsletter Spring 2013: Reported Case Summaries

A Husband and Wife were divorced on November 17, 2009, and the divorce judgment provided, in pertinent part:

The husband will pay $1,000 each week as child support and $1,325 each week as alimony. The wife will occupy the home, and pay the mortgage on it, as well as certain related expenses, "until the youngest child of the parents graduates from High School, anticipated to be in June 2013. At such time the parties shall place the marital home ... on the market for sale." After the house is sold, the husband's alimony obligation will be reduced to $500 each week and will continue until the death of either party or until the remarriage of the wife.

Husband moved to alter or amend the divorce judgment one week after the divorce judgment issued, requesting that a future reduction in alimony not depend on a child-related event. He requested that the wife continue to have the use and occupancy of the marital house until August 1, 2013, rather than "until the youngest child of the parents graduates from High School, anticipated to be June 2013." He proposed May 1, 2013 as the date the house be put up for sale with the provision that no sale should take place before August 1, 2013. Additionally, he proposed that alimony be reduced to $500 each week as of September 1, 2013, after the house was on the market for sale for four months. As rationale, the husband asserted that he would avoid the possibility of having to pay taxes on the alimony as if it were child support under I.R.C. § 71(c)(2).[1] The judge told the parties that I.R.C. § 71(c)(2) did not apply, and denied the Husband’s motion.

Yes, the lower court should have considered Husband’s potential federal tax consequences when denying Husband’s motion to amend alimony. The SJC vacated the order denying husband’s motion to amend alimony and remanded for further proceedings.

Where the issue of tax consequences has been raised and the judge has been provided with a tax analysis, the judge should consider the tax consequences. The tax analysis may be provided during trial, a post judgment motion to amend the judgment under Mass. R. Dom. Rel. P 59(e), or a motion for relief under Mass. R. Dom. Rel. P. 60(b). This does not mean that the judge must minimize tax consequences; instead, the judge has “considerable discretion” to make determinations after considering tax consequences.

Ulin v. Polansky, 11P1450

Facts:

At the time of divorce, both parties earned approximately $150,000.00 per year. The Husband was ordered pay child support in the amount of $65.00 per week, and the parties shared equally the costs of a nanny. The parties had about equal parenting time.

Two years after the divorce, Wife’s employer hired a new supervisor who informed her she needed to meet certain sales growth targets within a specified time. Wife believed she could not reasonably meet these targets, and Wife negotiated a severance package for twenty-four weeks of salary. After both the severance package and unemployment payments ran out, and she was unable to find permanent work, she filed a Complaint for Modification, seeking an increase in child support.

At trial, the court’s probation officer testified that Wife had been sincerely seeking work. Both parties presented vocational experts in support of their positions.

The lower court judge found the wife able to obtain employment, and attributed to her an income in the amount of $120,000.00 per year, an average of the range provided by the Husband’s expert. In further support of the attribution, the judge found that Wife had been receiving significant support from her parents, and had given $40,000.00 to her boyfriend, who was also her trial attorney. Based on the attribution, the judge ordered the Husband to pay $132.00 per week. Because this amount was significantly less than the temporary support order entered on the complaint for modification, the judge ordered Wife to reimburse the Husband $8,160.00 in excess child support payments.

The Wife then sought relief from judgment, pursuant to Mass. R. Civ. P. 60(b)(2) and (6) on the ground that after the modification judgment entered, the Social Security Administration declared her to be totally disabled. The judge denied the motion without substantive comment.

Issue:

Did the lower court err in attributing an annual income of $120,000? Did the lower court err in disregarding Wife’s expert? Did the lower court err in denying the Rule 60(b) motion?

SJC Holding and Rationale:

Attribution of Income: An attribution tied to earning capacity is to be based on whether a party has exercised reasonable efforts in seeking employment. Given the probation officer’s testimony that Wife was compliant and sincere in her job search, the attribution rests on insufficient factual findings. The lower court judge’s additional findings concerning Wife’s assets are not enough to support attribution. Remanded to lower court for further fact finding on the issue of attribution of income, with attention paid to whether Wife exercised reasonable efforts in her job search.

Expert Testimony: The judges have extensive discretion with respect to the admission of expert testimony, and the lower court judge did not err in this regard.

Relief from Judgment: The lower court judge did not err, because really the Wife should have been seeking a Complaint for Modification based on the new SSA declaration.

Freddo v. Freddo, 12P692

Facts:

The parties were divorced in 1995 in Florida. The Florida judgment provided that child support would terminate entirely “upon the minor children reaching the age of majority.”

Now, Mother, Father, and the children at issue reside in Massachusetts. In August 2011, Father filed a Complaint for Modification, requesting that the child support provision be terminated pursuant to Florida law. In Florida, support obligations terminate on a child’s eighteenth birthday, subject to certain exceptions that do not apply here. Mother moved to dismiss, and Father moved for summary judgment. The lower court found Father’s request groundless, ruling that the court had authority to extend the child support post-eighteen pursuant to G.L. c. 208 § 28.

Issue:

Where Florida issued the child support order, and both parties and the children now reside in Massachusetts, did the Massachusetts lower court err in extending the child support beyond eighteen?

SJC Holding and Rationale:

Yes, reversed. The court begins its analysis with G.L. c. 209D § 6-613, which provides that if all the parties and the child(ren) reside in Massachusetts, the Massachusetts court shall have “jurisdiction to enforce and modify the issuing state’s child support order.” G.L. c. 209D § 6-611(c) further provides that “a tribunal of the commonwealth may not modify any aspect of a child support order that may not be modified under the law of the issuing state.”

The court looks to UIFSA commentary for insight into the legislative intent of G.L. c. 209D. (G.L. c. 209D was enacted in 1995 adopting the 1992 version of the UIFSA.) One comment provides: “Subsection (c) prevents the modification of any final, nonmodifiable aspect of the original order.” And more commentary states, “the duration of the support obligation remains fixed despite the subsequent residence of all parties in a new State with a different duration of child support.”

Morales v. Morales, SJC 11104

The Supreme Judicial Court ruled that a divorced parent no longer needs to prove a substantial change in circumstances to modify a child support order. The SJC instead focused on the language of Massachusetts General Law chapter 208, §28, which provides that modification may be made “if there is an inconsistency between the amount of the existing order and the amount that would result from application of the child support guidelines”. This standard is known as the inconsistency standard and will be the standard that Massachusetts judges should apply to all child support modification cases going forward.

In Morales, the previous child support order required Father to make weekly child support payments to Mother for the care of their child. Approximately one year after the order for support entered, Mother requested modification based on Father’s recent job promotion. The Probate and Family Court found that this did not constitute a “material and substantial change in circumstances” and dismissed the complaint. The Appeals Court affirmed in an unpublished decision. The SJC remanded the case for consideration based on the inconsistency standard rather than the material and substantial change in circumstances standard.

Alison Silber is a family lawyer in private practice in Cambridge. She specializes in mediation and negotiation, and also appears regularly in Middlesex, Suffolk, and Norfolk Probate and Family Courts. Prior to opening her practice, Alison clerked for the Superior Court of the District of Columbia. Alison is a member of the Boston Bar Association and Massachusetts Bar Association, and she provides pro bono services for the Boston Volunteer Lawyers Project and the Women’s Bar Foundation Family Violence Project.

Brian McLaughlin Jr. is the owner and sole proprietor of Brian McLaughlin LLC. His practice focuses heavily on family law, including divorce, paternity and child support. In addition to family law, Mr. McLaughlin regularly takes unemployment benefits and special needs education cases. Mr. McLaughlin is committed to pro bono work and has successfully resolved cases for both the Volunteer Lawyers Project and Women’s Bar Foundation. He believes in the importance for quality legal representation for all and regularly serves as the Volunteer Lawyer of the Day at the Suffolk Probate and Family Court. Mr. McLaughlin currently serves on the Family Law and Pro Bono Steering Committees at the Boston Bar Association and holds the position of Civil Rights Liaison to the New Lawyers Section.

Brian is a graduate of Boston College, magna cum laude and Boston College Law School. His article ‘Not Your Average First Year’ appeared in the July 2011 edition of the Massachusetts Lawyers Journal.

[1] Under I.R.C. § 71(c)(2) of the Internal Revenue Code, alimony payments may be recharacterized as child support for Federal tax purposes:

"[I]f any amount specified in the [divorce] instrument will be reduced--

"(A) on the happening of a contingency specified in the instrument relating to a child (such as attaining a specified age, marrying, dying, leaving school, or a similar contingency), or

"(B) at a time which can clearly be associated with a contingency of a kind specified in subparagraph (A),

an amount equal to the amount of such reduction will be treated as an amount fixed as payable for the support of children of the payor spouse."